Qualification of Drivers; Exemption Applications; Vision

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-98-4334]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The FHWA announces its decision to exempt 23 individuals from

the vision requirement in 49 CFR 391.41(b)(10).

DATES: April 5, 1999.

FOR FURTHER INFORMATION CONTACT: For information about the vision

exemptions in this notice, Ms. Sandra Zywokarte, Office of Motor

Carrier Research and Standards, (202) 366-2987; for information about

legal issues related to this notice, Ms. Judith Rutledge, Office of the

Chief Counsel, (202) 366-0834, Federal Highway Administration,

Department of Transportation, 400 Seventh Street, SW., Washington, DC

20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the Federal Register

Electronic Bulletin Board Service at (202) 512-1661. Internet users may

reach the Federal Register's home page at: http://www.nara.gov/fedreg

and the Government Printing Office's database at: http://

www.access.gpo.gov/nara.

Background

Twenty-four individuals petitioned the FHWA for a waiver of the

vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of

commercial motor vehicles (CMVs) in interstate commerce. They are Gary

R. Andersen, Joe F. Arnold, Jack E. Atkinson, Gary A. Barrett, Ivan L.

Beal, Johnny A. Beutler, Richard D. Carlson, David John Collier, Tomie

L. Estes, Jay E. Finney, Britt D. Hazelwood, Jon R. Houston, Chad M.

Kallhoff, Loras G. Knebel, Rodney D. Lemburg, Dexter L. Myhre, James H.

Oppliger, Stephanie D. Randels, Duane L. Riendeau, Darrell Rohlfs,

Marvin L. Swillie, Larry Waldner, and Ronald Watt. The FHWA evaluated

the petitions on their merits, as required by the decision in

Rauenhorst v. United States Department of Transportation, Federal

Highway Administration, 95 F.3d 715 (8th Cir. 1996), and made a

preliminary determination that the waivers should be granted. On

December 1, 1998, the agency published notice of its preliminary

determination and requested comments from the public (63 FR 66226). The

comment period closed on December 31, 1998. One comment was received,

and its contents were carefully considered by the FHWA in reaching the

final decision to grant the petitions.

The FHWA has not made a decision on one applicant, Mr. Jon R.

Houston of Iowa. Subsequent to the publication of the preliminary

determination, the agency received additional information from the Iowa

Department of Transportation, and we are evaluating that information. A

decision on Mr. Houston's petition will be made in the future.

When the remaining 23 individuals filed their vision waiver

applications on various dates before June 9, 1998, the FHWA was

authorized by 49 U.S.C. 31136(e) to waive the vision standard if the

agency determined the waiver was consistent with the public interest

and the safe operation of CMVs. As the statute did not limit the

effective period of a waiver, the agency had discretion to issue

waivers for any period warranted by the circumstances of a request.

On June 9, 1998, the FHWA's waiver authority changed with enactment

of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L.

No. 105-178, 112 Stat. 107. Section 4007 of TEA-21 amended the waiver

provisions of 49 U.S.C. 31315 and 31136(e) to change the standard for

evaluating waiver requests, to distinguish between a waiver and an

exemption, and to establish term limits for both. Under revised

sections 31315 and 31136(e), the FHWA may grant a waiver for a period

of up to 3 months or an exemption for a renewable 2-year period. The 23

applications in this proceeding fall within the scope of an exemption

request under the revised statute.

The amendments to 49 U.S.C. 31315 and 31136(e) also changed the

criteria for exempting a person from application of a regulation.

Previously an exemption was appropriate if it was consistent with the

public interest and the safe

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operation of CMVs. Now the FHWA may grant an exemption if it finds

``such exemption would likely achieve a level of safety that is

equivalent to, or greater than, the level that would be achieved absent

such exemption.'' The new standard provides the FHWA greater

flexibility and discretion to deal with exemptions than the previous

standard. (See H.R. Conf. Rep. No. 105-550, at 489 (1998).)

Although the 23 petitions in this proceeding were filed before

enactment of TEA-21, the FHWA is required to apply the law in effect at

the time of its decision unless (1) its application will result in a

manifest injustice or (2) the statute or legislative history directs

otherwise. Bradley v. School Board of the City of Richmond, 416 U.S.

696 (1974). With respect to the new standard, nothing in the statute,

its history, or the facts in this proceeding meets either of these two

tests. In fact, the new standard is more equitable as it allows an

exemption to be based on a reasonable expectation of equivalent safety,

rather than requiring an absolute determination that safety will not be

diminished. In addition, the ``public interest'' finding required under

the previous standard is not necessary under the new exemption

standard. These changes enhance the FHWA's discretion to consider

exemptions, thus benefitting the 23 applicants rather than causing an

injustice.

For that reason, we applied the new standard in our evaluation of

these 23 petitions and determined that exempting these applicants from

the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a

level of safety equal to, or greater than, the level that would be

achieved without the exemption.

Vision and Driving Experience of the Applicants

The vision requirement in 49 CFR 391.41(b)(10) provides:

A person is physically qualified to drive a commercial motor

vehicle if that person has distant visual acuity of at least 20/40

(Snellen) in each eye without corrective lenses or visual acuity

separately corrected to 20/40 (Snellen) or better with corrective

lenses, distant binocular acuity of at least 20/40 (Snellen) in both

eyes with or without corrective lenses, field of vision of at least

70 deg. in the horizontal meridian in each eye, and the ability to

recognize the colors of traffic signals and devices showing standard

red, green, and amber.

Since 1992, the FHWA has undertaken studies to determine if this

vision standard should be amended. The latest report from our medical

panel recommends changing the field of vision standard from 70 deg. to

120 deg., while leaving the visual acuity standard unchanged. (See

Frank C. Berson, M.D., Mark C. Kuperwaser, M.D., Lloyd Paul Aiello,

M.D., and James W. Rosenberg, M.D., ``Visual Requirements and

Commercial Drivers,'' October 16, 1998, filed in the docket). The

panel's conclusion supports the FHWA's view that the present standard

is reasonable and necessary as a general standard to ensure highway

safety. The FHWA also recognizes that some drivers do not meet the

vision standard but have adapted their driving to accommodate their

vision limitation and demonstrated their ability to drive safely.

The 23 applicants fall into this category. They are unable to meet

the vision standard in one eye for various reasons, including

amblyopia, retinal and corneal scars, and loss of an eye due to an

accident. In most cases, their eye conditions were not recently

developed. All but five applicants were either born with their vision

impairments or have had them since childhood. They have lived with them

for periods ranging from 16 to 46 years. The five individuals who

sustained their vision conditions as adults have had them for periods

ranging from 4 to 25 years.

Although each applicant has one eye which does not meet the vision

standard in Section 391.41(b)(10), each has at least 20/40 corrected

vision in the other eye and, in a doctor's opinion, can perform all the

tasks necessary to operate a CMV. The doctors' opinions are supported

by the applicants' possession of a valid commercial driver's license

(CDL). Before issuing a CDL, States subject drivers to knowledge and

performance tests designed to evaluate their qualifications to operate

the CMV. All these applicants satisfied the testing standards for their

State of residence. By meeting State licensing requirements, the

applicants demonstrated their ability to operate a commercial vehicle,

with their limited vision, to the satisfaction of the State.

While possessing a valid CDL, these 23 drivers have been authorized

to drive a CMV in intrastate commerce even though their vision

disqualifies them from driving in interstate commerce. They have driven

CMVs with their limited vision for careers ranging from 4 to 36 years.

In the past 3 years, the 23 drivers had a total of five moving

violations among them. Two drivers were involved in minor accidents in

their CMVs, but there were no injuries and neither person received a

citation.

The qualifications, experience, and medical condition of each

applicant were stated and discussed in detail in 63 FR 66226, December

1, 1998. Since the lone docket comment did not focus on the

qualifications of a specific applicant, we have not repeated the

individual profiles here. Our summary analysis of the applicants as a

group, however, is supported by the information published in 63 FR

66226.

Basis for Exemption Determination

Under revised 49 U.S.C. 31315 and 31136(e), the FHWA may grant an

exemption from the vision standard in 49 CFR 391.41(b)(10) if the

exemption is likely to achieve an equivalent or greater level of safety

than would be achieved without the exemption. Without the exemption,

applicants will continue to be restricted to intrastate driving. With

the exemption, applicants can drive in interstate commerce. Thus, our

analysis focuses on whether applicants are likely to achieve an equal

or greater level of safety driving in interstate commerce as they have

achieved in intrastate commerce.

To evaluate the effect of these exemptions on safety, the FHWA

considered not only the medical reports about the applicants' vision

but also their driving records and experience with the vision

deficiency. Recent driving performance is especially important in

evaluating future safety, according to several research studies

designed to correlate past and future driving performance. Results of

these studies support the principle that the best predictor of future

performance by a driver is his/her past record of accidents and traffic

violations. Copies of the studies have been added to the docket.

We believe we can properly apply the principle to monocular drivers

because data from the vision waiver program clearly demonstrate the

driving performance of monocular drivers in the program is better than

that of all CMV drivers collectively. (See 61 FR 13338, 13345, March

26, 1996). That monocular drivers in the waiver program demonstrated

their ability to drive safely supports a conclusion that other

monocular drivers, with qualifications similar to those required by the

waiver program, can also adapt to their vision deficiency and operate

safely.

The first major research correlating past and future performance

was done in England by Greenwood and Yule in 1920. Subsequent studies,

building on that model, concluded that accident rates for the same

individual exposed to certain risks for two different time periods vary

only slightly. (See Bates and Neyman, University of California

Publications in Statistics, April 1952.) Other studies demonstrated

theories of predicting accident proneness from

[[Page 16519]]

accident history coupled with other factors. These factors, such as

age, sex, geographic location, mileage driven and conviction history,

are used every day by insurance companies and motor vehicle bureaus to

predict the probability of an individual experiencing future accidents.

(See Weber, Donald C., ``Accident Rate Potential: An Application of

Multiple Regression Analysis of a Poisson Process,'' Journal of

American Statistical Association, June 1971). A 1964 California Driver

Record Study prepared by the California Department of Motor Vehicles

concluded that the best overall accident predictor for both concurrent

and nonconcurrent events is the number of single convictions. This

study used 3 consecutive years of data, comparing the experiences of

drivers in the first 2 years with their experiences in the final year.

Applying principles from these studies to the past 3-year record of

the 23 applicants, we note that cumulatively the applicants have had

only two minor accidents and five traffic violations in the last 3

years. None of the violations represented a serious traffic violation

as defined in 49 CFR 383.5, and neither of the accidents involved

bodily injury or resulted in a citation. The applicants achieved this

record of safety while driving with their vision impairment,

demonstrating they have adapted their driving skills to accommodate

their condition. As the applicants' driving histories with their vision

deficiencies are predictors of future performance, the FHWA concludes

their ability to drive safely can be projected into the future.

In addition, we believe applicants' intrastate driving experience

provides an adequate basis for evaluating their ability to drive safely

in interstate commerce. Intrastate driving, like interstate operations,

involves substantial driving on highways in the interstate system and

on other roads built to interstate standards. Moreover, driving in

congested urban areas exposes the driver to more pedestrians and

vehicle traffic than exist on interstate highways. Faster reaction to

traffic and traffic signals is generally required because distances are

more compact than on highways. These conditions tax visual capacity and

driver response just as intensely as interstate driving conditions. The

veteran drivers in this proceeding have operated a CMV safely under

those conditions for at least 4 years, most for much longer. Their

experience and driving records lead us to believe the applicants are

capable of operating in interstate commerce as safely as they have in

intrastate commerce. Consequently, the FHWA finds that exempting

applicants from the vision standard in 49 CFR 391.41(b)(10) is likely

to achieve a level of safety equal to that existing without the

exemption. For this reason, the agency will grant the exemptions for

the 2-year period allowed by 49 U.S.C. 31315 and 31136(e).

We recognize that the vision of an applicant may change and affect

his/her ability to operate a commercial vehicle as safely as in the

past. As a condition of the exemption, therefore, the FHWA will impose

requirements on the 23 individuals consistent with the grandfathering

provisions applied to drivers who participated in the agency's vision

waiver program.

Those requirements are found at 49 CFR 391.64(b) and include the

following: (1) that each individual be physically examined every year

(a) by an ophthalmologist or optometrist who attests that the vision in

the better eye continues to meet the standard in 49 CFR 391.41(b)(10),

and (b) by a medical examiner who attests that the individual is

otherwise physically qualified under 49 CFR 391.41; (2) that each

individual provide a copy of the ophthalmologist's or optometrist's

report to the medical examiner at the time of the annual medical

examination; and (3) that each individual provide a copy of the annual

medical certification to the employer for retention in its driver

qualification file, or keep a copy in his/her driver qualification file

if he/she is self-employed. The driver must also have a copy of the

certification when driving so it may be presented to a duly authorized

Federal, State, or local enforcement official.

Discussion of Comment

The FHWA received one comment in this proceeding. In that comment,

J.B. Hunt Transport, Inc. (Hunt) expresses general opposition to

exemptions from the physical qualification standards and raises

procedural objections to this proceeding.

On the procedural issue, Hunt maintains that the applicants should

reapply under the standards which will be adopted in Docket No. FHWA-

98-4145, Federal Motor Carrier Safety Regulations; Waivers, Exemptions,

and Pilot Programs; Rules and Procedures, 63 FR 67600, December 8,

1998, to implement the TEA-21 changes to the agency's exemption

authority. It asserts that the agency is disregarding the rulemaking

process by considering vision waiver requests filed after the waiver

program was closed and before rules are fully adopted to implement the

new provisions of 49 U.S.C. 31315 and 31136(e).

Section 4007 of TEA-21 requires the Secretary of Transportation to

promulgate regulations specifying the procedures by which a person may

request an exemption. The statute lists four items of information an

applicant must submit with an exemption petition and gives the

Secretary 180 days (from June 9, 1998) to implement the new procedural

regulations. On December 8, 1998, the agency published interim final

rules in Docket No. FHWA-98-4145 to implement section 4007. The interim

rules will govern exemption requests filed on or after June 9, 1998,

until final rules are adopted in that proceeding.

Before publishing its notice of intent to grant these applications,

the FHWA determined that applying the new procedural requirements of

section 4007 of TEA-21 would adversely affect the applicants. As we

explained in 63 FR 66226, December 1, 1998, it would have been

manifestly unjust to hold applications filed before June 9, 1998, in

abeyance until new procedural regulations were implemented in December,

and then require the applicants to submit conforming, supplementary

information to support their exemption request. Such delay not only

would have been unjust but would have provided nothing to enhance

safety. For these reasons, the FHWA decided not to apply the procedural

requirements of section 4007 to exemption requests filed before its

effective date, June 9, 1998. As these applications were filed before

that date, we processed them under procedures in effect at the time

they were filed, a decision supported by Bradley v. School Board of the

City of Richmond, 416 U.S. 696 (1974).

The balance of Hunt's comments relate to its opposition to

exemptions for drivers who cannot meet the existing medical standards.

First, Hunt asserts that ``minimum safety standards'' should apply to

every CMV driver in interstate commerce without the possibility of

waiver or exemption. If the vision standard in 49 CFR 391.41(b)(10) is

the appropriate minimum standard, Hunt urges, it should be applied

without exception. If it is not, the standard should be reviewed in

accordance with several guidelines suggested by Hunt in its comments.

The FHWA continues to review the vision standard in 49 CFR

391.41(b)(10), as evidenced by the medical panel's report dated October

16, 1998, filed in this docket, and we welcome Hunt's suggested

guidelines to factor into our review process. Notwithstanding the

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ongoing review of the vision standard, however, the FHWA must comply

with Rauenhorst v. United States Department of Transportation, Federal

Highway Administration, 95 F.3d 715 (8th Cir. 1996), and grant

individual exemptions under standards that are consistent with public

safety. Meeting those standards, the 23 veteran drivers in this case

have demonstrated to our satisfaction that they can operate a CMV with

their current vision as safely in interstate commerce as they have in

intrastate commerce. Accordingly, they qualify for an exemption under

49 U.S.C. 31315 and 31136(e).

Hunt also asserts that motor carriers should be given regulatory

relief which would allow them to maintain the more stringent vision

standard found in 49 CFR 391.41(b)(10) and the right to legally decline

the use of a driver with an exemption. Absent that relief, Hunt urges

that motor carriers ``forced to use a waived or exempted driver''

should receive a hold harmless agreement from the FHWA relieving them

of liability in case a medically exempted driver has a traffic

accident.

The FHWA's physical qualification standards are minimum

requirements; thus, carriers already have the right to maintain

standards that meet or exceed those established by the agency (49 CFR

390.3(d)). When motor carriers apply higher physical standards than

required by the FHWA, however, they must be prepared to justify their

requirements if challenged under the Americans with Disabilities Act,

Pub.L. 101-336, 104 Stat. 327, or any other law. In short, a motor

carrier has a legal obligation not to discriminate on the basis of a

disability, and the FHWA cannot relieve a carrier of that obligation.

Conclusion

After considering the comment to the docket and based upon its

evaluation of the 23 waiver applications in accordance with Rauenhorst

v. United States Department of Transportation, Federal Highway

Administration, supra, the FHWA exempts Gary R. Andersen, Joe F.

Arnold, Jack E. Atkinson, Gary A. Barrett, Ivan L. Beal, Johnny A.

Beutler, Richard D. Carlson, David John Collier, Tomie L. Estes, Jay E.

Finney, Britt D. Hazelwood, Jerome R. Jessen, Chad M. Kallhoff, Loras

G. Knebel, Rodney D. Lemburg, Dexter L. Myhre, James H. Oppliger,

Stephanie D. Randels, Duane L. Riendeau, Darrell Rohlfs, Marvin L.

Swillie, Larry Waldner, and Ronald Watt from the vision requirement in

49 CFR 391.41(b)(10), subject to the following conditions: (1) That

each individual be physically examined every year (a) by an

ophthalmologist or optometrist who attests that the vision in the

better eye continues to meet the standard in 49 CFR 391.41(b)(10), and

(b) by a medical examiner who attests that the individual is otherwise

physically qualified under 49 CFR 391.41; (2) that each individual

provide a copy of the ophthalmologist's or optometrist's report to the

medical examiner at the time of the annual medical examination; and (3)

that each individual provide a copy of the annual medical certification

to the employer for retention in its driver qualification file, or keep

a copy in his/her driver qualification file if he/she is self-employed.

The driver must also have a copy of the certification when driving so

it may be presented to a duly authorized Federal, State, or local

enforcement official.

In accordance with revised 49 U.S.C. 31315 and 31136(e), each

exemption will be valid for 2 years unless revoked earlier by the FHWA.

The exemption will be revoked if (1) the person fails to comply with

the terms and conditions of the exemption; (2) the exemption has

resulted in a lower level of safety than was maintained before it was

granted; or (3) continuation of the exemption would not be consistent

with the goals and objectives of 49 U.S.C. 31315 and 31136. If the

exemption is still effective at the end of the 2-year period, the

person may apply to the FHWA for a renewal under procedures in effect

at that time.

Authority: 49 U.S.C. 31315 and 31136; 23 U.S.C. 315; 49 CFR

1.48.

Issued on: March 29, 1999.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 99-8196 Filed 4-2-99; 8:45 am]

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